DHCR Decisions          Docket No. EA230159RO                                    STATE OF NEW YORK                      DIVISION OF HOUSING AND COMMUNITY RENEWAL                            OFFICE OF RENT ADMINISTRATION                                     GERTZ PLAZA                               92-31 UNION HALL STREET                               JAMAICA, NEW YORK  11433          ------------------------------------X          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW          APPEAL OF                               DOCKET NO.: EA230159RO                                                              DISTRICT RENT          ABC Realty Co.                          ADMINISTRATOR'S DOCKET          c/o David Eisenstein                    NO.: DD220026BO(7MD00950K)                                             PETITIONER          ------------------------------------X            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW              The above-named owner filed a timely petition for          administrative review of an order issued concerning the housing          accommodations known as 4815 15th Avenue, Various Apartments,          Brooklyn, New York.              The Commissioner has reviewed all the evidence in the record an          has carefully considered that portion of the record relevant to the          issues raised by the petition.              The issue before the Commissioner is whether the          Administrator's order was correct.              The Administrator's order being appealed, DD220026BO was issued          on December 29, 1989.  In that order, the Administrator affirmed          the finding of 7MD00950K, issued April 14, 1889 that the owner be          denied eligibility for a 1986/87 Maximum Base Rent (MBR) increase,          due to the owner's failure to serve the tenants with the Order of          Eligibility on a timely basis.              On appeal, the owner contends that it never received the Order          of Eligibility, which was issued by the Administrator on June 29,          1988 under the Docket #7M00950K(7MI00950K).  The owner further          contends that it first learned of this order when it received a          letter from the D.H.C.R. dated January 20, 1989, informing the          owner that the Administrator hadn't received the Affidavit of          Service of the above-named Order of Eligibility.  Pursuant to the          Rent and Eviction Regulations, such service had to have been made          upon the affected tenants by August 28, 1988, 60 days after the          issue date of June 29, 1988.  The owner submits with its appeal an          Affidavit of Service dated January 27, 1989.  The owner claims          Docket No. EA230159RO          that, inasmuch as Administrator's order 7MD00950K (issued April 14,          1989) states on its face that the Order of Eligibility was mailed          to the owner on January 20, 1989, the service of the order 7 days          later was timely.              The Commissioner is of the opinion that this petition should be          denied.              An examination of the record reveals that "Final Order Denying          1986/87 MBR's" reads in relevant part:  "Owner... failed  to          submit... an Affidavit of Service regarding Order of Eligibility-          Maximum Base Rent 1986/87 served on all affected tenants (which          finalized interim order), mailed to owner on January 20, 1989,          Docket #7M00950K"  The owner interprets this passage to mean that          the Order of Eligibility was served upon it on January 20, 1989.            The owner thus concludes that its filing of an Affidavit of Service          of this order one week later is prima facie proof of timely filing.            The Commissioner notes, however that the only document served upon          the owner on January 20, 1990 was the above-mentioned letter          informing the owner that the Administrator had not yet received an          Affidavit of Service.              The Commissioner is further of the opinion, that, inasmuch as          the Final Order wasn't issued until April 14, 1989, the owner was          disingenuous in its assertion on appeal that the Final Order was          served on January 20, 1989.  The Commissioner thus concludes that          7MD00950K's reference to a document "mailed to the owner on January          20, 1989" clearly alludes to the Administrator's letter, and that          the owner was aware of this allusion.              The Commissioner is further of the opinion that the owner has          not substantiated its allegation, made upon appeal, that it never          received the June 29, 1988 Order of Eligibility.  Additionally,          there is no evidence in the record to  indicate that the order was          not successfully mailed to the owner.              THEREFORE, in accordance with the provisions of the Rent and          Eviction Regulations, it is              ORDERED, that this petition for administrative review be, and          the same hereby is, denied, and that the order of the Rent          Administrator be, and the same hereby is, affirmed.          ISSUED:                                                                                                                         Joseph A. D'Agosta                                             Deputy Commissioner